Countering a DMCA Notice
Chances are you landed here because we’ve passed along a Digital Millennium Copyright Act takedown notice regarding material on your site. In short, the DMCA enables copyright holders to enforce their rights by requesting the removal of unauthorized uses of their content. This means that as the host of your site, we’re required to disable access to content upon receipt of a valid takedown notice.
Although you are prohibited by law to republish the content, that’s certainly not the end of the story! First, we encourage you to try to resolve the issue directly with the copyright holder. If the unauthorized use is the result of an honest mistake or misunderstanding, the complainant may send us a retraction of the takedown notice. This prevents your blog from being associated with an instance of copyright infringement.
Alternatively, if you believe that you have rights to post the material (for example, if it’s fair use), or a mistake has been made (e.g. material in question being misidentified), you can submit a counter notice.
Considerations before submitting a counter notice
Before submitting a counter notice, you should consider the following:
- Similar to the initial takedown notice that we forwarded to you, we will pass your counter notice on to the copyright owner. If they disagree that their takedown notice was submitted in error, they may pursue legal action against you to protect their content.
- Counter notices must be submitted by the WordPress.com user who uploaded the material.
- After a period of ten business days, if the content owner does not object to your counter notice by taking legal action, we will restore access to the previously removed material on your site. You must not republish the material during this ten business day period.
What is fair use?
There aren’t any hard and fast rules when it comes to defining fair use. However, the Copyright Act sets out four factors for courts to consider:
- The purpose and character of the use: Why and how did you use the material? Using content for criticism, comment, news reporting, teaching, scholarship or research is usually fair. Additionally, using material in a transformative manner, that is to say, in a manner that adds new expression, meaning, or insight, is also more likely to be considered fair use over an exact reproduction of a work. What’s more, nonprofit use is favored over commercial use.
- The nature of the copyrighted work: Is the original factual or fiction, published or unpublished? Factual and published works are less protected, so its use is more likely to be considered fair.
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole: How much of the material did you use? If the “heart” (the most memorable or significant portion) or the majority of a work wasn’t used, it’s more likely to be considered fair.
- The effect of the use upon the potential market for, or value of, the copyrighted work: Does your use target a different market/audience? If so, it’s more likely to be fair use. It’s important to note that although criticism or parody may reduce a market, it still may be fair because of its transformative nature. In other words, if your criticism of a product influences people to stop buying the product, that doesn’t count as having an “effect on the market for the work” under copyright law.
Here are some examples of situations where you may be permitted to use copyrighted material without prior permission from the owner:
- Including screenshots of a website/profile/communication that demonstrate an issue that you’re criticizing or claim you’re making
- Incorporating a brief quote from someone else’s blog for the purpose of commenting on their opinion
- Altering an image or photograph in a satirical manner
Here are some resources to learn more about fair use:
- Copyright.gov – Fair Use
- EFF – The Bloggers’ FAQ on Intellectual Property
- Stanford University Libraries – Fair Use
- Nolo – The ‘Fair Use’ Rule: When Use of Copyrighted Material is Acceptable
If you’re uncertain as to whether a specific use qualifies as fair use, please consult a copyright attorney.